Charging Libby, who didn’t leak identity, off target

By Freedom Newspapers

Nobody but daily attendees knows everything the jury does in the I. Lewis “Scooter” Libby case, so we are reluctant to criticize the seven women and four men who found him guilty on four of five counts related to obstruction of justice and lying to investigators and a grand jury. The more important question is whether the case should have been brought at all.

Some observers have questioned whether it was internally consistent for the jury to find Libby not guilty on one count — lying to the FBI about a conversation with Time magazine journalist Matthew Cooper, even as it found Libby guilty of lying to the grand jury about the same conversation.

But the discrepancy is not difficult to understand. FBI investigators did not record their interrogations but kept notes, whereas the grand jury testimony was recorded. So when it came to the grand jury appearances, the jurors had Libby’s voice on tape rather than a paraphrase derived from notes. It is much easier to entertain a reasonable doubt in the latter instance.

Prosecutors have discretion, and one could argue that it was reasonable to bring Libby to trial simply judging by the result: The jury found him guilty so the case must have been worthy. There is, however, another way to look at it.

Much of the outrage that surrounded what does seem to have been an administration campaign to discredit former ambassador Joseph Wilson, who had criticized the justification for the war in Iraq in an op-ed column, centered on the suggestion that the campaign resulted in “outing” Wilson’s wife, Valerie Plame, who was said to be a covert CIA operative.

Illegitimately revealing the identity of a covert CIA operative is punishable by law. The CIA does not comment on who is covert, which is convenient for all sides in this instance.

The fact of the matter is, however, that nobody has been charged with the crime of leaking Plame’s CIA employment to the press — specifically to columnist Robert Novak, who mentioned the fact in a July 14, 2003 column.

And, independent prosecutor Patrick Fitzgerald knew by October 2003 that the person who leaked it to Novak — apparently in the course of a long, rambling phone conversation — was former Deputy Secretary of State Richard Armitage.

Fitzgerald also knew that Novak confirmed the information not with Libby but with White House political adviser Karl Rove.

So why did the investigation continue to focus on Libby?

Now we would not be surprised, from all we have heard and read about the trial, if Libby, as Vice President Dick Cheney’s chief of staff, was part of a campaign to discredit Wilson. Nor would we be surprised if he misled FBI investigators during his initial interrogation. While there is a certain he-said-she-said character to the testimony of journalists Tim Russert and Cooper, the accounts they gave certainly differed from what Libby told investigators.

But even after Fitzgerald knew that Armitage was the source of the leak, and after he had decided not to prosecute Armitage, he continued to send FBI investigators to interrogate Libby, and he later convened a grand jury.

To be sure, high officials are not supposed to lie to investigators. But since Fitzgerald knew about Armitage, it’s difficult to make a solid case that Libby’s dissembling was really obstructing justice.

Did Fitzgerald indict Libby because he was outraged about lying or because he needed a big administration fish to justify his office’s labors?

We hold no brief for Scooter Libby. As the vice president’s chief of staff he bears a great deal of culpability for maneuvering the United States into a war in Iraq that was not justifiable. He probably bears some responsibility for the politicization of intelligence that occurred during the run-up to the war.

These are policy mistakes that deserve condemnation. And lying to federal investigators is serious enough to consider prosecution. But when there’s no underlying crime, prosecutors have the discretion not to prosecute.

Fitzgerald would have done well to use his discretion differently.